Litigation / Divorce

Litigation comes in many types, all of them stressful. We handle the following types of lawsuits:

commercial lawsuits involving contracts and other kinds of business related claims

probate litigation

real estate lawsuits where title or liens are at issue

personal injury claims

divorce

We take on a limited number of litigation matters so that we can focus on each case. Unfortunately, divorce is a very common type of litigation, and so we have set forth below some answers to common questions related to divorce and custody matters.

When hiring a litigator, it is important that you find someone who shares your philosophy. Our philosophy on litigation is to move the case forward towards trial or settlement as quickly as reasonably possible. This costs a bit more on the front end, but reduces the overall time and stress and expense. We can’t guarantee a victory, but we can help you gather your evidence and frame your arguments and get you your day in court, so to speak. We do not believe in making litigation fraught with clever tricks and delay tactics. We don’t aim to start a blood war with opposing counsel. In fact, we try to work amicably with opposing counsel to settle the case or get it heard by a court and decided upon. Simply put, we aim to get you on the stand so that you can convince the judge or jury of your point of view. Litigation is stressful for all involved, and so we like to get it resolved rather than let the case linger. One of the main stressors in litigation is the constant setting of various deadlines for discovery, responses, pleadings, hearings, and trial. That is another reason we like to be “ahead of the curve” and focus on the case and keep it moving towards resolution.

Because the workload of getting a case to trial is so heavy, we often partner with co-counsel, to share the burden.

PATERNITY

1. “Should I just do my own divorce?”

If you don’t have children or property, it might be an option for you. But you can fall into a number of traps by using the do it yourself forms. A divorce decree should cover many complex issues, including custody, visitation, child support, property division, and more. A thorough and well-written divorce decree can be 50 or more pages long.

2. “Can I just have my marriage annulled and avoid a divorce?”

Only if you can show one of the following: (1) the marriage took place due to duress or coercion; (2) one of the parties was under the lawful age to marry; (3) at least one party to the marriage was intoxicated at the time of the marriage and didn’t intend to marry; (4) the parties did not wait the required 72 hours following the issuance of the marriage license; (5) it is discovered, after the marriage, that the man is impotent (note: infertility is insufficient); (6) one party was tricked into marrying by commission of a fraud.

3. “How do I get legally separated?”

Texas does not recognize legal separation. Texas only recognizes divorces. However, prior to divorce, some couples choose to obtain separate residences and execute a martial agreement to divide their property.

4. “How does one become ‘common law’ married in Texas?”

The law refers to this situation as “informal marriage.” Here are the three requirements:
1. Both parties must have intended to be married.
2. You must have lived together as husband and wife.
3. You must have held yourself out to others as married.

5. “How do you get divorced in Texas?”

You or your attorney must file an Original Petition for Divorce. This document is similar to other documents that initiate lawsuits, but instead of asking for damages for an injury or a breach of contract, the Original Petition for Divorce asks the court to dissolve the marriage, divide your property and debts, and make orders appropriate for the children.

6. “Can I get a divorce if my spouse’s whereabouts are unknown?”

It complicates things, but it is still possible.

7. “My spouse is violent. How can I protect myself?”

If you are ever threatened or physically abused call 911 immediately and explain exactly what happened. Then talk to your attorney about getting a protective order. If you need to a place to stay that is protected, contact Safe Place.

8. “I just moved to Austin from out of state, can I file for divorce in Texas?”

Either you or your spouse must have lived in Texas for 6 months and in the county in which you’re filing for the preceding 90 days before you can file for divorce.

9. “Is there a waiting period in Texas?”

Yes. The court can not grant the divorce until at least 60 days has passed from the date of the filing of the divorce suit.

10. “Is my divorce case likely to go to trial?”

No, most divorces settle – i.e. the spouses agree to a division of property and custody (or “conservatorship” as it is called in Texas).

11. “How long does it take to get divorced?”

After you’ve filed for divorce, Texas requires a 60 day “cooling off period” before the final divorce decree. If you and your spouse are in agreement, the final decree can be filed on the 61st day. But in practice, it takes two to nine months, roughly.

12. “What are the grounds for divorce?”

Texas is a “no-fault” divorce state. You can file for divorce simply because “the marriage has become insupportable because of discord or conflict of personalities between you that has destroyed the legitimate ends of the marriage.” Of course, the standard options are also available – things like adultery, cruelty, felony conviction, abandonment, etc. But the “no-fault” option is generally preferred because it is harder to reach an agreed settlement after a protracted legal battle. It also makes it more difficult to work together as parents going forward if you’ve had a combative divorce.

13. “When is my divorce final?”

Your divorce is final on the day the Decree of Divorce is signed by the Judge. Due to the (remote) possibility of an appeal, you may not legally remarry for 30 days after your Decree is signed by the Judge.

14. “What should I do if I get served with divorce papers?”

Contact a lawyer immediately so that your Answer can be filed. If you fail to file an Answer after being properly served, your spouse can go to court without you and get a divorce that divides property, assigns parental rights, and orders child support, all without your input.

15. “Do you offer flat fee divorces?”

No. Regardless of how simple your situation may seem to be, there are many things that can’t be predicted with a divorce proceeding. But we do try to estimate how much it will be and ask for a retainer in that amount. If you do get a quote from an attorney for a flat fee family matter or divorce, you should be sure to get it in writing. You should also ask if filing fees are included and if the attorney will accompany you to prove up the final decree.

16. “How much will a divorce cost?”

If you and your spouse are in agreement about the division of property and there are no children, a divorce can sometimes be done for as little as $1,500. This includes filing fees and an attorney to accompany you to court to prove up the final divorce decree. However, the costs can vary widely. The more you and your spouse battle it out, the more expensive it will be. A hard fought divorce can easily cost each party $20,000 in legal fees, not to mention investigators, expert witnesses, etc.

17. “How does the court decide who gets the children in a divorce?”

The standard that the court considers is “the best interest of the child.” The court’s decision on this can be influenced by a wide variety of things.

18. “What is conservatorship?”

Texas courts don’t use the term “custody.” They say “conservatorship” instead.

There are two types of conservatorship in Texas – Joint (both parents share “custody”) and Sole (one parent has “custody”). There is a presumption that it is in the child’s best interests that the parties be named Joint Managing Conservators.

19. “What’s the normal outcome on custody of the children?”

Normally, the court will name both parties “joint managing conservators.” This means that both parties will have a relatively equal say in raising the children. However, one parent will usually determine where the child will live while the other will have a standard visitation schedule and will pay child support. If the parties can’t agree on who will have custody of the children, the court decides.

20. “If I don’t get custody, how often will I get to see my children?”

The parents can agree to any schedule they like. If they are unable to agree on a schedule, Texas has a “Standard Possession Order” that provides for the person who does not have the children to have possession of the children on the 1st, 3rd and 5th weekends of each month, plus Thursday evenings during the school year and a month in the summer.

21. “Can my ex who has custody of my children just move to another state any time?”

Generally speaking, yes, unless you ask for and receive a court order restricting their residence to a certain geographical area.

22. “How much does a custody case cost?”

Be aware that custody fights are expensive. By hiring experts, taking depositions, conducting extensive discovery, and using extensive attorney time to prepare for and have a trial, a heated custody fight will easily cost $5,000 to $35,000 dollars and could be more.

23. “My ex and I were never married. Can I still get child support?”

Yes. There is no marriage requirement. If your ex is the biological parent of your child, and you have custody, then you are entitled to child support.

24. “How much child support will I receive / have to pay?”

Usually 20% of net income (gross income minus taxes with one exemption taken) for one child, 25% for two children, 30% for threee children, etc. These percentages only apply to the first $7,500 of the non-custodial parent’s net income. Child support above the non-custodial parent’s net income of $7,500 is generally awarded only if the child has special needs, such as a disability, that requires additional care and support. Usually, the parent paying the child support is also responsible for maintaining or reimbursing the other party for health insurance for the children.

25. “I have an order for child support, but my ex won’t pay.”

First contact the Child Support Division at the Texas Attorney General’s Office. You may also want to hire an attorney to pursue remedies in court, such as asking the judge to hold your ex in contempt of court and throw them in jail. That always gets their attention. You can also have their driver’s license, and any professional licenses, suspended.

26. “Since Texas is a community property state, will everything will be split 50/50?”

Not necessarily. If you and your spouse aren’t able to agree upon a division, then the court will divide the assets in a “just, right, fair and equitable” manner. That may or may not end up being 50/50.

The Texas Constitution says that all assets acquired during the marriage are presumed to be community property unless they fall within an exception, such as an inheritance or a gift. Assets owned before the marriage generally remain separate property. Most judges in a divorce suit will try to divide the assets and liabilities roughly 50-50. However, a court may order an unequal division of the community property in certain cases: adultery, family violence, different levels of fault in the marital break-up, unequal contributions to the estate, etc.

27. “Can I get alimony?”

Texas doesn’t have alimony. We do have a very limited provision for “spousal maintenance,” but it doesn’t get awarded very often. In general, it’s considered in marriages that lasted longer than 10 years and where there is a disparity in income and earning potential, in situations where there was domestic violence, or where there is a disabled spouse.

28. “How is paternity established for children born outside a marriage?”

You must file a suit to establish paternity. A probable father should always request DNA testing to be done. Only after the court issues an order finding you to be the father of the child do you legally become the father. Once paternity is established, the court will determine the rights and privileges of the parents, who will pay child support, how much support will be paid, and the periods that each parent will have possession of the child.

29. “My baby was born outside of marriage. As the father do I automatically have parental rights?”

No. First, the court must establish your paternity.

If you’re in the market for an Austin divorce lawyer, we hope you choose us.

Member of State Bars of Texas, New York and New Jersey
Admitted to practice before all state and federal courts in Texas.
Certified by the Texas Board of Legal Specialization in Estate Planning and Probate Law.